Does Co‐Regulation Strengthen EU Legitimacy?

• Date: 01 July 2009
• Author: Paul Verbruggen
• Published date: 01 July 2009
• DOI: http://doi.org/10.1111/j.1468-0386.2009.00471.x

eulj_471425..441

Does Co-Regulation Strengthen

EU Legitimacy?

Paul Verbruggen*

Abstract: Within the Better Regulation programme of the EU, co-regulation is promoted

as an important strategy to improve the regulatory environment within Europe. It is

assumed that co-regulation can enhance the legitimacy of EU governance in the field

where this strategy is used. The purpose of this article is to assess the truth of this premise

and to analyse whether co-regulation strengthens the legitimacy of EU governance. To

this end, the criteria of input and output legitimacy are applied to the European social

dialogue as a form of co-regulation in the EU policy area of social law. In this article, a

link is made between the tendency to prescribe co-regulation as a specific regulatory

strategy in EU legislative policy and the existing knowledge on the purposes and effects of

co-regulation and the conditions under which co-regulation can function as a regulation

strategy.

I Introduction

The use of co-regulation constitutes an important pillar of the legislative policy of the

EU. In general terms, co-regulation can be described as a regulation method that

includes the participation of both private and public actors in the regulation of specific

interests and objectives. As such, co-regulation brings together private and public

actors in the different stages of the regulation process.1When the strategy of

* PhD Candidate at the European University Institute, Florence, Italy. This article was first published in a

different form as a Working Paper for the Centre for Methodology of Law and Legal Research, Tilburg

University, The Netherlands. The author may be reached at paul.verbruggen@eui.eu. I wish to thank the

editors of this journal for their useful comments. All errors, of course, remain mine.

1E. Best, ‘Alternative Regulations or Complementary Methods? Evolving Options in European Gover-

nance’, (2003) Eipascope 2; Ph. Eijlander, ‘Possibilities and Constraints in the Use of Self-Regulation and

Co-Regulation in Legislative Policy: Experiences in the Netherlands—Lessons to be Learned for the EU?’,

(2005) 9(1) Electronic Journal of Comparative Law, available at http://www.ejcl.org/91/art91-1.html; L.

Senden, ‘Soft Law, Self-Regulation and Co-Regulation in European Law: Where Do They Meet?’, (2005)

9(1) Electronic Journal of Comparative Law, available at http://www.ejcl.org/91/art91-3.html; F. Cafaggi,

‘Rethinking Private Regulation in the European Regulatory Space’, in F. Cafaggi (ed), Reframing Self-

Regulation in European Private Law, Private Law in European Context Series (Kluwer Law International,

2006), 3; C. Scott, ‘Self-Regulation and the Meta-Regulatory State’, in F. Cafaggi (ed), Reframing

Self-Regulation in European Private Law, Private Law in European Context Series (Kluwer Law Inter-

national, 2006), 131; and E. Svilpaite, Legal Evaluation of the Selected New Modes of Governance:

The Conceptualisation of Self- and Co-Regulation in the European Union Legal Framework, NewGov

Project Paper (2007), available at http://www.eu-newgov.org/database/DELIV/D04D69_Limits_of_self-

regulation.pdf.

European Law Journal, Vol. 15, No. 4, July 2009, pp. 425–441.

© 2009 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford, OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

co-regulation is applied to a specific policy field, this can, for example, imply that

private actors are enabled to establish certain norms in order to regulate a specific

policy issue pursuant to general principles and conditions determined by a public actor

in a legislative act.

Whilst co-regulation has a prominent place in the current legislative policy of the

EU, legal scholars have not (yet) shown a great deal of interest in this regulatory

method. Where it did get attention, the focus has been on the conceptualisation of

co-regulation.2The aim of this article is to take the discussion on co-regulation in

Europe somewhat further and to analyse the potential effects of the use of co-

regulation in terms of the legitimacy for EU governance. The guiding question is

whether co-regulation strengthens the legitimacy of EU governance. It is assumed that

co-regulation can enhance EU legitimacy in the field in which this instrument is used.

To assess the truth of this premise, the criteria of input and output legitimacy are

applied. This distinction was presented by Scharpf3in the 1970s and is employed here

as it presents a useful model for analysing questions of legitimacy. Scharpf’s distinction

also had a significant impact on the debate regarding the legitimacy of EU governance.

In this article, the criteria of input and output legitimacy are applied to the case of the

European social dialogue as a form of co-regulation in the area of European social

policy. The legitimacy of EU governance in this area has been an issue of intense

debate. Therefore, it is interesting to analyse the extent to which the use of the

European social dialogue as a manifestation of co-regulation has contributed to the

legitimacy of EU governance in this field. It will be argued that if co-regulation is to

strengthen the legitimacy of EU governance, the EU should set out in greater detail and

in a consistent fashion what it aspires to do with co-regulation, under what conditions

co-regulation may be applied and what effects co-regulation may generate.

First, an outline of the characteristics of co-regulation will be given (section II). After

establishing why the claim that co-regulation strengthens the legitimacy of EU gover-

nance is problematic (section III), the concept of legitimacy is specified (section IV).

Here, the criteria of input and output legitimacy will be discussed. These criteria form

the determinants on the basis of which it will be established, for the purposes of this

article, whether co-regulation strengthens the legitimacy of EU governance in the field

in which it is applied. Subsequently, the extent to which the two criteria are met in the

field of European social policy is ascertained (section V). Finally, concluding remarks

follow (section VI).

II Understanding Co-Regulation in the EU Context

When analysing the regulatory strategy of co-regulation in the context of the EU,

academics are faced with two basic—and rather conceptual—questions: what is new

about co-regulation and what does co-regulation actually mean? These two questions

will be explored below.

A Old Wine in New Bottles?

Co-regulation has been applied in the European context for more than 25 years. The

involvement of both private and public actors in regulatory processes was already

2ibid.

3F. Scharf, Governing in Europe: Effective and Democratic? (Oxford University Press, 1999), at 7–13.

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